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Anticipated Policy Challenges for International Students in 2020

International Education
February 27, 2020 Diana Ali NASPA

Since the start of the Trump Administration, international students carrying F-1, J-1, M-1, or H-1B visas have been subject to several limiting policies. Even if administrative action is reversed, these policies shape the student experience and subsequent necessary support from student affairs practitioners. From residence life and study abroad to apply for graduate research, international students are having to carefully weigh the realities of increased administrative scrutiny against the benefits of educational, scholarship, and research opportunities in the United States.

Existing challenges are further complicated by unclear motivations behind administrative-led policy changes and directives that lend to a culture of fear and ambiguity for international students in 2020. Student affairs practitioners are charged with the role, as the liaison between institutional structures and the student, to stay informed and abreast of changing policies and procedures at the institutional, state, and federal levels. Even when a policy change seems to only affect a small population of students, or results in isolated incidents, the complications presented here indicate the potential for reverberating effects.

Delayed Processing for Nonimmigrants

Impact on International Students

A primary barrier for all international students in 2020 remains delayed visa processing times. Since the program’s expansion from 24 to 36 months in May 2016, students are increasingly seeking opportunities through the Optional Practical Training (OPT) program, which offers practical learning through on-the-job partnerships with employers following the completion of a graduate degree. Ongoing visa delays can result in students having to ask employers to provide later start dates, resulting in the possible loss of wages or a job offer. Visa processing times are so backlogged that the internship or program in which a student has applied for may have already passed before receiving a response, and they may have to defer admission. A recent Forbes article found that as of February 4, 2020, at a service station in Texas, the processing time was 9 to 11.5 months for an “Application to Extend/Change Nonimmigrant Status (I-539).” Students now have to apply up to a year in advance of upcoming changes to their visa status to avoid complications--changes that they may not yet be aware of.

Potential Complications in 2020

This is problematic from a planning and information-gap standpoint for students, but also further exacerbates worries students may have about accruing unlawful presence, which has become a heightened concern through a change to overstay visa policy from 2018. Unlawful presence, as referenced by USCIS, is accrued if someone is present in the United States without having been admitted, or if someone remains in the United States after the expiration of an authorized period of stay. The Department of Homeland Security began enforcing the policy starting in August 2019. Since then, international students would accumulate unlawful presence—which could result in a ban to re-entry for up to ten years—retroactively from the date in which a violation occurred, regardless of the student’s awareness of their status. 

More recently, unlawful presence has become an example of a policy reversal, that may still result in further implications down the line. This does not, however, necessarily reverse the reverberating impact on campus. In February 2020, a federal district court judge in North Carolina blocked enforcement of the policy through its violations of the Administrative Procedures Act (APA) and the Immigration and Nationality Act (INA). Like other measures that have been blocked through litigation, future administrative action may be imminent, especially since USCIS has upcoming regulatory action regarding unlawful presence slated for September 2020 in its Fall 2019 Unified Regulatory Agenda.

Optional Practical Training and Duration of Status

Impact on International Students

According to the 2019 Open Doors Report on International Educational Exchange, the United States had more international students in the 2018-2019 academic year than ever before, an increase in 0.05 percent; however, the disaggregated data show a decline in new enrollment numbers by 0.9 percent. This shows that international students are still pursuing educational opportunities at institutions across the United States, but that institutions may be struggling to recruit new students. One of the areas where Open Doors reports a large increase in students is that of the Optional Practical Training (OPT) Program, discussed above, which increased in 2018-2019 by 9.6 percent to 223,085 program participants. Increased percentages might also be associated with current policy, known as the “duration of status” that allows a student, once admitted, to complete the course of their studies. 

Potential Complications in 2020

In their 2019 Fall Regulatory Agenda, the Department of Homeland Security listed the intent to publish a proposed rule “Establishing a Maximum Period of Authorized Stay for Students, Exchange Visitors, and Media Representatives>” Expected in February 2020, the proposed rule would reverse the security provided through the current “duration of status” policy. The administration might similarly do-away with OPT, listing the target date for regulatory action as of August 2020 in their summary document. The agenda states that “ICE [Immigration and Customs Enforcement] will amend existing regulations and revise the practical training options available to nonimmigrant students on F and M visas.”

Enhanced Vetting and Screening

Impact on International Students

Even after a visa is processed, students face increased vetting by the United States Customs and Border Protection (CBP) following new directives starting in 2017, with increasing incidents of detained students following a new policy regarding the screening of electronic devices in 2018.  

Potential Complications in 2020

Uncertainty and confusion international students face regarding vetting are furthered by seemingly targeted efforts from the administration toward states upholding sanctuary policies for undocumented immigrants. In December 2019, New York implemented its Green Light Law, both allowing undocumented immigrants to apply for state driver’s licenses—an economically beneficial, human rights-oriented, policy solution trending in multiple states—as well as preventing DMV administrators from sharing this data with USCIS. In response, in January 2020, the Trump administration blocked all residents from the state of New York from participating in Global Entry programs to allow for faster processing times for pre-vetted